Wood v. De Winter

• Decision Date: 23 January 1926
• Docket Number: (No. 11367.)
• Citation: 280 S.W. 303
• Parties: WOOD et ux. v. DE WINTER et al.
• Court: Texas Court of Appeals

280 S.W. 303

WOOD et ux. v. DE WINTER et al.

(No. 11367.)

Court of Civil Appeals of Texas. Fort Worth.

January 23, 1926.

Appeal from District Court, Wichita County.

Action by Frank Wood and wife against Kathryn De Winter and others, in which defendants filed a cross-action. Judgment for defendants, and plaintiffs appeal. Affirmed.

Raymond M. Myers, of Wichita Falls, for appellants.

Harris & Martin, of Wichita Falls, for appellees.

BUCK, J.

Frank and Alta Wood, husband and wife, sued Kathryn L. De Winter and her husband, J. H. De Winter, also Harvey Harris and Thelbert Martin, in form of trespass to try title to a certain lot, with improvements, in the city of Wichita Falls. Plaintiffs alleged that on March 15, 1921, the defendants Kathryn L. De Winter and J. H. De Winter conveyed by a general warranty deed to Henry Hobbs the property in controversy, and on June 27, 1924, said Hobbs conveyed the property to plaintiffs. The petition contained the usual allegations of trespass to try title, and alleged the annual rental value of the land and premises to be $300. They further alleged: That on March 5, 1921, Henry Hobbs and the defendant J. H. De Winter entered into a rental contract, in which the said De Winter, after acknowledging in Henry Hobbs the ownership of the above-described property and premises, agreed to pay as rental for the same the sum of $25 per month for a period of one year, on which the sum of $175 had been paid and credited, but no further sums have been paid on same. That on or about January 1, 1922, defendant J. H. De Winter left Wichita Falls, since which time defendant Kathryn De Winter has lived in said house and on said premises and occupied the same at the time of the suit. That at the time J. H. De Winter left Wichita Falls defendant Kathryn De Winter asked Henry Hobbs if she might remain in said house, and it was then mutually agreed between them that she could lease said property for the sum of $25 per month.

Defendants Kathryn De Winter and Harris and Martin answered by a general demurrer and a general denial, and on behalf of Kathryn L. De Winter answered: That the purported deed from the De Winters to Hobbs had in fact been a mortgage to secure a loan of $3,000, and that Hobbs had told Mrs. De Winter that her husband desired to borrow the money from him, and that he was willing to loan to her husband the money on defendants' home, and that the notary did not explain to her that the instrument was intended and purported to be a conveyance of the title. That the property at the time of the execution of this instrument was of the value of $5,500 or $6,000, and that the reasonable market value of said property was $6,000 at the time of said purported deed, and that the reasonable rental value of said property at said time was $85 per month. It was further alleged that plaintiffs Frank and Alta Wood were not purchasers in good faith and without notice of defendant's right to said property, and that if a conveyance had been executed by the said Henry Hobbs attempting to convey the said property to the plaintiffs that same is void, because plaintiffs at the time of said last conveyance had actual and constructive notice and knew that said defendant was occupying and claiming said property as her homestead, and that same was her homestead on March 5, 1921.

Mrs. De Winter further pleaded that she had never agreed to pay Henry Hobbs or any one else rent on said property, that all of the furniture and belongings located in said house were the household furnishings belonging to herself and used by herself and family and exempt under the laws of the state of Texas, and that a landlord's lien did not attach to said property.

Defendants Harvey Harris and Thelbert Martin pleaded that they had never been in possession of said property described in plaintiffs' petition, and that their only interest therein was by power of attorney executed by Mrs. De Winter on February 21, 1923, wherein in consideration of legal services the said Mrs. De Winter conveyed to them a one-third undivided interest in said land and premises.

Wherefore, defendants prayed that plaintiffs take nothing by their suit, that an order be entered canceling the purported deed of March 5, 1921, and that the cloud cast by said instrument be removed from the title of said property, and for costs of suit and for other and further relief, both special and general, in law and in equity.

Plaintiffs filed an answer to defendants' cross-action and denied generally the allegations contained in said cross-answer. Defendant J. H. De Winter, by Wayne Somerville, an attorney appointed by the court to represent him, filed a general answer, consisting of a general demurrer, a general denial, and a plea of not guilty. The cause was tried before a jury on one special issue, to wit:

"Was it the intention of all parties, Mr. and Mrs. De Winter and Mr. Hobbs, to the deed from Mr. and Mrs. De Winter to Henry Hobbs, that the same was being executed as security for $3,000 that Mr. Hobbs delivered to the defendants?"

The jury answered, "Yes." Judgment was entered upon this verdict that Frank and Alta Wood take nothing against any of the parties defendant, and adjudging and decreeing that the deed of March 5, 1921, be canceled and the cloud cast by said instrument on said title be removed. From this judgment the plaintiffs have appealed.

The appellants have several assignments of error, such as the verdict is against the overwhelming weight of the evidence, that it is contrary to the evidence, that the evidence is not sufficiently clear and certain to sustain the verdict, that the evidence is too doubtful and unsatisfactory to sustain the verdict, etc.

Henry Hobbs testified: That he bought the property in controversy from J. H. De Winter on March 5, 1921. That De Winter wanted something like $5,000 or $6,000 in the beginning of the negotiations, but that Hobbs told him he would give him $3,000 cash for it. That finally De Winter accepted the offer. That S. A. L. Morgan, an attorney, examined the abstract and wrote the deed. That Mr. Morgan told him that a rental contract should be drawn up and signed by the parties, and that when the question of the amount of rent came up he told Mr. Morgan that, inasmuch as De Winter had two orphan nieces to support, that he, Hobbs, would reduce the rent to $25 per month. That when Mr. De Winter began to talk about getting the money he wanted Hobbs to make a loan on the property, but that the witness, after talking with his attorney, who told him that he would not be protected by a mortgage on a homestead, reported this information back to De Winter. That some time about a year or more after the execution of the deed Mr. and Mrs. De Winter called him over to the house one night and informed him that they had decided each to go his or her own way, and that Mrs. De Winter wanted to know if he would let her and the children stay in the house, and that the witness told her that he would do so as long as she paid the rent. That she has paid no rent since that time, and that he had paid the taxes since 1921. That he did not have any conversation with Mrs. De Winter about the trade with her husband. That he was present in the office when the deed was executed. That Mr. Morgan explained the purport of the deed to Mrs. De Winter, and told him that they were absolutely selling the property. That he did not tell Mrs. De Winter or her husband that the $300 a year was to cover the interest on the money. That he did not tell her that she could go ahead and sign the papers for her husband and he could get the loan and go into business, and that he would pay it back in one year's time. That he did not tell her this, because he did not know whether her husband would ever pay the money back or not. That along about June 24, 1924, he gave her notice to vacate.

Mr. J. W. Talbert testified: That he was engaged in the building and loan association business in Wichita Falls, and that he had been engaged in the real estate and building and loan business for 11 years. That he was acquainted with the reasonable market value of the property in controversy in March, 1921. That he understood that the De Winters paid $5,500 for the property in 1919, and that he thought the property was well worth that amount at that time. That in 1921 property values in Wichita Falls had been lowered somewhat, and that he thought from $4,750 to $5,000 was a reasonable value for the property. That the lot was in a good location, was an east front, and that it was close to the city park, etc.

Homer Karrenbrock testified for the defendant: That in his opinion, in March, 1921, the reasonable market value of the property was $4,700. That in 1919, in his judgment, the property could have been sold for $5,500 or $5,750. That in his opinion, in March, 1921, the reasonable monthly rental value of the property was $50 to $55.

Mr. H. G. Helgerson testified: That he had been in the real estate business in Wichita Falls for six years, and that in his opinion the reasonable market value of the property in controversy, in March, 1921, was around $5,000. That the reasonable monthly rental value of said property was $75. That some months prior to the trial Mrs. De Winter asked him to come up and look at the property and see what it could be sold for. That he asked her what she was willing to take for it, and she replied that there was a loan of $3,000 on it. That he asked her when it became due, and she told him that it was due then. That he asked her if the parties were willing to carry it, and she explained the circumstances and the status of the loan. That he told her that if it was in that kind of shape he did not want to work on it. That in his investigation he examined the deed records and found that the instrument signed by De Winter and wife was a deed. That Mrs. De Winter did not know this before he told her.

Mr. N. M. Clifford testified: That he was...